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In re Broiler Chicken Antitrust Litigation

United States District Court, N.D. Illinois, Eastern Division

December 22, 2017




         Early this year, the parties issued initial sets of Rule 34 requests for production of documents. The parties have since responded and objected to each other's requests for production, and they met and conferred about those responses and objections. Then, in several status reports and letters, the parties identified and briefed certain disputes regarding the Rule 34 requests for production (and the responses and objections thereto). See [415 at 33-52; 429; 434; 506; 507; 508; 522; 523; 524; 526]. During a telephonic status hearing held on December 11, 2017, the parties stated that a few of those disputes remain outstanding and are now ripe for ruling. In this Order, the Court rules on several of those disputes.

         1. Phone Record Redactions

         Request No. 2(e) of All Plaintiffs' First Set of Requests for Production of Documents to All Defendants requests the phone records of each document custodian. [508 at 28].[1] The parties do not actually agree whether there is a dispute with respect to this request for production. Plaintiffs say Defendants Peco Foods, Inc., George's, and Perdue "have indicated their intent to apply redactions to certain unidentified phone numbers." Id. at 11, [2] According to Defendants, however, none of them has yet determined whether to redact phone records (or the nature or extent of any such redactions) but all of them (not just Peco, George's, and Perdue) reserve the right to do so. Defendants do not describe the nature and extent of the redactions they are considering. The Court agrees with Defendants that the parties may not yet have reached an unresolvable impasse with respect to a particular proposed redaction. During the December 11, 2017 telephone conference, however, Plaintiffs indicated it would be helpful to have more guidance on the issue of redacting phone records. In the Court's view, the lack of a more concrete dispute is not so limiting as to thwart the usefulness of analyzing the parties' arguments and providing general guidance.

         Plaintiffs argue Defendants should not be permitted to redact phone numbers from their telephone records that are irrelevant to the claims and defenses in this case for any number of reasons. Plaintiffs contend the disclosure of phone numbers contained in telephone records does not implicate privacy concerns and, in any event, the designation of the records as confidential under the Agreed Confidentiality Order [202] will provide sufficient protection since those phone numbers cannot be used for any purpose other than this litigation. Plaintiffs also assert the process of redacting phone numbers, meeting and conferring about the redactions, and then processing and analyzing redacted records will impose substantial undue burden and expense on them. In response, Defendants claim the Order regarding Production of Electronically Stored Information and Paper Documents ("ESI Protocol") [459] contemplates the possible redaction of irrelevant information. Defendants argue that, because Plaintiffs are seeking production of records from phones used for not only business but also personal purposes, it makes sense to allow Defendants to protect their right to redact irrelevant information.

         On August 15, 2017, the Court entered the ESI Protocol. [459], The ESI Protocol provides that, "[a] [p]arty may redact irrelevant information that is highly sensitive, medical, or personal information (e.g., health information or Social Security Numbers)." Id. at 19.[3] It perhaps is a close question whether "highly" modifies "personal" under the series-qualifier canon.[4] Although "highly sensitive" and "highly personal" are common enough concepts, the same may not be said of "highly medical." There are reasons, though, why "personal" should not be interpreted to include any and all personal information. For one, mundane personal information that does not implicate any privacy interest is unlike highly sensitive or medical information. See United States v. Williams, 553 U.S. 285, 294 (2008) (discussing the canon of noscitur a sociis). Further, the one relevant example given in the order-Social Security Numbers-is not run-of-the-mill personal information. See F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 943-44 (9th Cir. 2012) ("'e.g.' signifies that the subsequent examples" are not "exhaustive" but that they "are illustrative."). In any event, while this is an interesting riff, it does not necessarily resolve the question at hand for a number of reasons including, most importantly, because the Court does not know specifically what "highly sensitive, medical, or personal" information any Defendant wants to redact from the phone records it produces.

         The Court addressed the redaction of irrelevant information in phone records during a status hearing held on June 16, 2017. The Court said it "generally" does not "allow redactions for relevance." [430 at 131]. The Court recognized that, in some instances, it may be appropriate to redact irrelevant information. Id. The basis of such a redaction, however, would not be irrelevance, but, rather, the highly sensitive nature of the information. Id. Moreover, the Court indicated designating information confidential, rather than redacting it, generally is "the way to go" on protecting irrelevant information of a sensitive nature. Id. at 135.

         The Court's thinking has not changed. The phone numbers dialed from or received by a phone typically are not the type of sensitive information that must be redacted before records are produced to the other side. See Corsair Special Situations Fund, L.P. v. Engineered Framing Sys., Inc., 2011 WL 3651821, at *2 (D. Md. Aug. 17, 2011) ("An individual does not have a legitimate expectation of privacy in the telephone numbers that are dialed on his or her telephone.") (quoting Booker v. Dominion Va. Power, 2010 WL 1848474, at *9 (E.D. Va. May 7, 2010)). During the status hearing on June 16, 2017, the Court indicated that, in police cases, phone numbers of family members commonly are redacted because of the serious security concerns implicated by providing those numbers to a plaintiff suing an individual police officer. [43 0 at 131]. This exception proves the rule, and no party has articulated such a security concern in this case. Further, the Court agrees with Plaintiffs that the burden involved in redacting phone records line-by-line to remove all irrelevant phone numbers and the delay that likely will be occasioned by that effort significantly outweighs the benefits of doing so. Plaintiffs already have agreed all phone records can be designated as confidential under the Agreed Confidentiality Order, which provides adequate protection by limiting the use and disclosure of confidential information to certain persons and for certain purposes. [202 at 4-5].

         For all these reasons, the Court concludes Defendants generally should not redact irrelevant information from the phone records they are producing with a confidentiality designation. If the Court is missing some nuance in Defendants' position, or there is some particularly sensitive information that one or another Defendant is concerned about, and that concern cannot be addressed by the confidentiality designation or it falls outside of the Court's discussion of the issues above, then that Defendant can bring the issue to the Court's attention and the Court can address it in the context of a specific dispute.

         2. Time Period Issues

         The parties have agreed that, as a general matter, the appropriate time period for discovery in this case is January 1, 2007 through September 2, 2016. [459 at 12]. Some of Plaintiffs' Rule 34 requests seek documents that pre- or post- date that time period. Defendants have objected to this expanded temporal scope with respect to certain requests. The disputes now before the Court can be grouped into three categories.

         A. Documents Related to the Georgia Dock Index and the Georgia Premium Poultry Price Index

         Request No. 21 of All Plaintiffs' First Set of Requests for Production of Documents to All Defendants requests documents related to the Georgia Dock Index ("GDI"). [508 at 28][5]Plaintiffs want Defendants to produce responsive documents through at least February 28, 2017. Plaintiffs say this extended time period is justified because the Georgia Department of Agriculture's investigation of the GDI and its efforts to replace, potentially, the GDI with the proposed Georgia Premium Poultry Price Index ("GPPPI") go through at least February 28, 2017. Defendants, on the other hand, propose an end date of December 31, 2016. Defendants note the GDI ceased to exist in the middle of that month and argue the GPPPI is not relevant to this case because Plaintiffs' claims are based on alleged manipulation of the GDI only.

         The alleged manipulation of the GDI is one of the core components of Plaintiffs' claims in this case. See [489 at 14] (noting documents relating to the GDI "are at the core of Plaintiffs' allegations in this case"); [541 at 15-16] (describing the alleged manipulation). Defendants are correct that Plaintiffs have not alleged a conspiracy to manipulate the GPPPI. Common sense, however, supports the notion that information concerning the investigation of the GDI and the attempt to create a replacement index (namely, the GPPPI) likely could be relevant to Plaintiffs' allegations about a conspiracy to manipulate the GDI. For instance, during the effort to create the GPPPI, there may have been discussion about how the GDI operated and what went wrong (or right) with the GDI. Although the Federal Rules of Civil Procedure do not countenance wholesale fishing expeditions, the common sense considerations that could implicate a potential nexus between documents relating to the GDI and the GPPPI are sufficient to distinguish Plaintiffs' request from a fishing expedition. ...

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